The Queen v Colin George Dunstan [2000] ACTSC 35 (26 April 2000)

Last Updated: 16 October 2000

THE QUEEN v COLIN GEORGE DUNSTAN [2000] ACTSC 35 (26 April 2000)

CATCHWORDS

SENTENCE - offender convicted of posting articles which contained explosive and intentionally attempting to inflict grievous bodily harm - consideration of appropriate punishment for offences involving explosives - whether mitigatory factors exist - whether offender was mentally impaired - whether offender's motive was mitigatory.

Talbot v The Queen (1992) 34 FCR 100

Wilson v The Prothonotary [2000] NSWCA 23

R v Sakr (1987) 31 ACrimR 444

R v Skipper (1992) 64 ACrimR 260

No. SCC 104 of 1999

Judge: Higgins J

Supreme Court of the ACT

Date: 26 April 2000

IN THE SUPREME COURT OF THE )

) No. SCC 104 of 1999

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

COLIN GEORGE DUNSTAN

ORDER

Judge: Higgins J

Date: 26 April 2000

Place: Canberra

THE COURT ORDERS THAT:

1. On each of counts one to seven, nine, and eleven of the indictment convictions be recorded.

2. On each of counts two, four and six the offender be sentenced to three years imprisonment. Each of those sentences to be cumulative upon the other.

3. On each of counts one, three, five, seven, nine and eleven the offender be sentenced to two years imprisonment each of those sentences to be concurrent with the prior sentences and with each other, save that count eleven be cumulative upon counts one, three, five, seven and nine.

4. A period of five years is fixed as the period to expire before the offender becomes eligible for parole. The Court recommends close supervision on parole.

5. The sentence is to commence on 26 May 1999.

1. The facts of this matter were largely uncontested.

2. The major areas of controversy related to the assertions by the offender that, in constructing various devices, some later delivered to addressees, one of which exploded in transit, he had not only not intended them to explode, thus denying intent to injure any addressee but also that he had, by flattening the batteries and using igniters that were marginal ensured no device would explode.

3. At about 12.25am on Wednesday, 2 December 1998, Ms Nellie Campbell, an Australia Post employee, was working at the Canberra Mail Centre at Fyshwick. She threw one of the packets, in which, unbeknown to her, the offender had concealed an explosive device, into a bin. It exploded. The addressee could not be identified from the fragments later recovered but the return addressee was "D O'Donnell". A postal worker was slightly injured by a plastic shard from one of the components, a computer disc box. Another component, a soda bulb cylinder which had contained the explosive charge, penetrated through a ceiling panel.

4. Twenty-one intact devices were later located by police in the sorting room of the mail exchange.

5. Six other devices were found to have been earlier delivered. Two of those were delivered and opened but failed to explode. The remainder, for one reason or another, usually in response to warnings following the explosion at Fyshwick, were "disrupted" on site.

6. The eleventh count on the indictment refers to the incident at the Canberra Mail Centre. It refers to the carriage by post of the explosive device which detonated. Its detonation is not an element of the offence. Nor is any intent to injure. However, the fact of the explosion illustrates the risk undertaken.

7. The evidence persuades me, as it did the jury, that the accused was aware that there was, at least, a significant risk that an explosion of some of the devices would occur if mishandled or opened. They were, in any event, designed to cause terror to those addressed. They were to believe, if they did not suffer death or severe injury, that it was their good fortune. They were to feel that the offender had been so traumatised by the injustices done to him that he was prepared to take their lives.

8. The addressees were all persons involved in a protracted dispute between the offender and the Australian Taxation Office concerning employment issues. Those issues had sparked a number of proceedings, discussions, representations and efforts at counselling.

9. The ten remaining charges related to five individual addressees, representative of the class of actual and, from a list found, possible other addressees.

10. In each case the Crown alleged the dispatch of an explosive device. That was not seriously disputed. It was or contained an explosive, the offender had no other denial to offer than that the devices should not be defined as being or containing an explosive. His claim that he did not intend to injure those five addressees was accepted as to two of them but rejected as to three of them.

11. The facts of this case reveal a number of serious offences. The offender caused twenty-eight letter bombs to be despatched to various addressees.

12. Even had the offender's intention been, as he claimed, merely to cause terror and alarm to a group of persons he believed had failed to redress his grievances rather than bodily injury, it remains a serious crime deserving of condign condemnation. The terror and alarm he caused spread beyond the class of intended addressees to others including postal workers and members of addressees' families.

13. Even so, there were other aggravating factors. The devices were capable of exploding, as the evidence clearly indicated. Even if, as the offender claimed, he had rendered explosion improbable, he lacked the expertise to ensure that. He did not render the devices unquestionably safe.

14. Accidental explosion resulting in serious injury remained a significant risk.

15. Further, though he had allowed himself to wallow in self-absorption and self-pity over his employment difficulties, they were objectively trivial. His obsession with them was totally unreasonable, and his actions to vindicate himself absurdly self-centred and disproportionate.

16. It follows that I can see no mitigation in the underlying grievances the offender was seeking to redress. Those grievances arose from his own actions and he, quite simply, was not prepared to accept the consequences of them.

17. But, of course, there is more. In respect of three persons, the jury has found that the offender expressly intended grievous bodily harm. The process of reasoning leading to that finding, but excluding two others in no apparently different relationship, is not entirely clear to me. It may have turned on whether the presence of "flattened" rather than functional batteries was established.

18. Whatever the reason explaining the distinction drawn by the jury, it was the tribunal of fact. It found that intent to cause grievous bodily harm was present in three of the five cases where that intent was alleged.

19. The penalty for such offences, and their place in the hierarchy of offences against the person, make them very serious indeed.

20. There was in each case, a serious risk of collateral damage to persons other than the intended recipients, extending indeed to persons totally unconnected with them.

21. The outrage occasioned by such actions and the creation of such risk of injury requires severe punishment.

22. However, no sentence can be imposed solely to satisfy community outrage however justified it may be, although it may be assumed that the objective of general deterrence will, if satisfied, go some way towards satisfying community outrage to the extent that such outrage is objectively justifiable.

23. A "just and appropriate" sentence must take account of the personal circumstances, and moral responsibility of the particular offender (see eg. Talbot v The Queen (1992) 34 FCR 100).

24. Happily, this is not a case where prevalence of the offence is a relevant factor.

25. A number of personal factors have been suggested as mitigatory.

26. I accept, as Mr Refshauge for the Crown submits, that no mitigation arises from a plea of guilty or apparent remorse. Neither of those factors is present with this offender.

Mental Impairment

27. It is accepted that the offender over the relevant period suffered from severe depression. Even if the events leading to that condition had been the result of his own unreasonably obsessive conduct, it makes his torment no less real. Indeed, his mental state following despatch of the devices was such that he attempted suicide. I accept that it was a genuine attempt at suicide.

28. Nevertheless, although that mental condition may have heightened to irrational levels his sense of grievance, the offender knew what he was doing and that it was seriously criminal.

29. The description, cited by Mr Refshauge, of the contemnor in Wilson v The Prothonotary [2000] NSWCA 23 given by Meagher JA accurately reflects this offender's state of moral responsibility.

"There is no evidence that Mr Wilson is mentally unbalanced: eccentric yes, obsessive certainly, but demented no. It follows that ... he knew exactly what he was doing."

30. Nevertheless, I do accept that, at the time when he conceived of this plan for a campaign of terror, the offender's moral judgment had been adversely affected by his self-obsession with, and deep depression over, his perceived grievances.

Motive

31. The motive for these offences was not, though the offender attempted so to portray it, altruistic.

32. He contended that he had sent the devices to teach the addressees a valuable moral lesson. However, absent paranoid delusion, the range and role of the addressees went well beyond those in relation to whom, even in his own view, the offender entertained any real grievance.

33. In truth, I consider, the offender was concerned to perpetrate an act of revenge upon all those who had anything to do with the events giving rise to or following his sense of grievance and depression. In some cases at least, so the jury has concluded, that act of revenge was intended to result in grievous bodily harm.

Other matters

34. The offender is entitled to some mitigation because this is a first offence (or series of offences). It arises out of a situation which snowballed beyond control. It seems to me that the situation was encouraged by the absurdly complicated grievance mechanisms engaged in within the Australian Public Service generally and the Australian Taxation Office in particular. He was not alone in being responsible for elevating a relatively simple workplace difficulty into an intractable and lengthy series of administrative and legal proceedings.

35. None of that can excuse or mitigate the serious criminality of the offender's actions. No amount of self-pity can detract from the serious harm that the offender has caused and the risk to many of even greater harm which he created. The eleven counts in the indictment, nine being recorded as findings of guilt by the jury, are representative of the mailing out of a greater number of explosive devices prepared by the offender.

36. In all the circumstances, no sentence other than one of full-time imprisonment could adequately meet the circumstances of the offences. There is, as Mr Refshauge conceded, a degree of overlap. That is not entirely true of the specific matters in relation to which an intent to cause grievous bodily harm was found. There is to that extent, less of an overlap in the overall criminality of those offences compared with the offences involving the mailing of explosive devices.

37. So far as the degree of seriousness which should attach to these offences, it should be borne in mind that the explosive devices, even absent the intent to injure, were, in respect of some of them at least , capable of exploding and of inflicting serious bodily harm. Further, the intent was to cause, as happened, fear and alarm, not only to the named intended recipients, but also to many unconnected bystanders. Whilst an exploding device would not cause widespread serious injury, it could cause serious injury to a person in proximity of the opening of it.

38. Mr Refshauge made reference to R v Sakr (1987) 31 ACrimR 444. In that case, the offender had assisted in the planting of explosives intended to destroy the premises of a business rival. There was, obviously, a risk of collateral personal injury but none was intended.

39. A sentence of five and a half years with a minimum term of three and a half years was considered by the Court of Criminal Appeal of Victoria to have been inadequate. A sentence of seven years, with a minimum term of five years, was substituted.

40. Crockett J, at 451, commented that:

"The use of bombs and explosives is the trademark of the terrorist, whose acts of lawlessness have engendered a special revulsion that is due not only to the fact that death is so often the intention of the perpetrator, but also because the recklessness with which the offence is, by its very nature, invested is so likely to lead to the loss of innocent lives and, less importantly, to the destruction of the property of innocent third persons. It is an offence that is callous in its conception, wanton in its perpetration and, if the intent is given effect to ruthlessly destructive in its aftermath. It is a crime that is relatively novel in this country ... and yet it is plain that there is a community recognition that it is regarded with a particular repugnance because its commission represents a profound assault upon a stable society and the law and order that is necessary for that society's survival. Those responsible for such reprehensible conduct must expect to suffer condign punishment."

41. Those words eloquently describe this case. It is true that each individual explosive device constructed by this offender was much less powerful than the explosives set in R v Sakr. On the other hand, they were despatched to and were required to be handled by or near a large number of individuals. If any exploded, there would necessarily be one or more persons in close proximity. They were anti-personnel devices. One postal worker was injured, fortunately slightly, but, had an eye been struck or had a solid element, such as the soda bulb used to contain the explosive powder, struck a person, injury would have been more serious, possibly lethal.

42. A major depressive disorder suffered by an offender may be a mitigating factor. This was so in R v Skipper (1992) 64 ACrimR 260. There a consequence of the illness was that the prisoner had determined to kill herself and her children. She failed (fortunately). A non-custodial sentence was imposed, directed toward treatment and rehabilitation.

43. The only similarity with the present case is the presence of a serious depressive illness. Here, the offender himself created the situation which caused his depression. He himself exacerbated it. He pursued proceedings to vindicate his own obsession with the correctness of his perception of his rights. He drew the untenable conclusion that when the individuals he assailed responded by defending the proceedings he took, or making cross-claims of their own, they were to be blamed for that. His crimes were a product of self-pity and a desire for revenge. His justification that it would deter persons from treating others with disregard for their rights is grossly hypocritical. Whatever wrongs the addressees may have committed, that could not remotely have justified the campaign of terror the offender planned. Nor could it be remotely proportionate to subject those persons to the risk of serious bodily injury. That says nothing about the callous disregard of the safety of innocent and unrelated bystanders.

44. The offences call for severe condemnation. No doubt some, particularly the victims, might think even this penalty is not punishment enough.

45. Colin George Dunstan - stand.

46. On each of counts one to seven, nine, and eleven of the indictment I formally record convictions.

47. On each of counts two, four and six you are sentenced to three years imprisonment. Each of those sentences is to be cumulative upon the other.

48. On each of counts one, three, five, seven, nine and eleven you are sentenced to two years imprisonment each of those sentences is to be concurrent with the prior sentences and with each other, save that count eleven is to be cumulative upon counts one, three, five, seven and nine.

49. I fix a period of five years as the period to expire before you become eligible for parole. I recommend close supervision on parole.

50. The sentence is to commence on 26 May 1999.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 26 April 2000

Counsel for the Prosecution: Mr R Refshauge

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Offender: Mr D Perkins

Solicitor for the Offender: Darryl Perkins Solicitor

Dates of hearing: 8 & 30 March 2000

Date of sentence: 26 April 2000